EMA Human Rights Blog

The Hate Speech Dilemma in Politics

By Lauryane LeneveuThe history of freedom of expression corresponds to the history of democracy in Europe. Hence, both the affirmation and the considerable importance of this freedom were emphasised following large European social strains such as the Holocaust or the fall of the Berlin Wall. Rapidly, freedom of expression has been recognised as being an indispensable component for the full development of individuals and European communities by guaranteeing open and free pluralistic democratic societies.

In parallel, freedom of expression has also been radicalised. Today certain individuals and groups express ideas on the superiority of a certain race, ethnicity, sex, religion or nation, with the intention to humiliate all those not belonging to their group. In today’s current political climate there are many examples of this behaviour which often lead to acts of violence, intimidation, discrimination, isolation and even genocide. In such cases, freedom of expression is transferred into hate speech.

Hate speech is a form of intolerant expression
targeting aspects of a person’s identity that are unchangeable and fundamental.
Originally hate speech was
deeply linked to racism and xenophobia, a phenomenon following the Second World
War instigated by racist propaganda and the Holocaust. Today, hate speech may
also take the form of sexism, misogyny, homophobia and other related
declinations of intolerance.

Recent years have demonstrated a worrying increase of expressions of
hate, incitement to violence and discrimination compounded by politicians. In fact, under the pressure of both
the international rise of extremism and populism, as well as specific European
trends, notably the shift from homogeneous to multicultural society in many
European States, intolerant discourse has been reinjected into political
agendas. Nowadays, in several States, extremist parties, whether far-right or left, are
propagating and defending ideologies that are incompatible with democracy and
threaten the fundamental values that Europe sets out to defend.

“There must be, consequently, a fair balance between repressing intolerant discourse and respecting freedom of expression.”

However, limiting the threats posed to democracy by extremist parties
creates a complicated dilemma. On the one hand, ideology of such parties
conflicts with fundamental values recognised in Europe. On the other, one of
the main features of a democratic society is to guarantee the right of freedom
of expression. There must be, consequently, a fair balance between repressing intolerant
discourse and respecting freedom of expression.

Legally
speaking, the right to freedom of expression is enshrined in Article 10 of the
European Convention on Human Rights (ECHR). The protection of Article 10
extends to any form of expression, notwithstanding its content, disseminated by
any individual, group or type of media. The Strasbourg Court even recognises
that freedom of expression also applies to ideas that offend, shock or disturb.

Freedom of expression
is particularly important in the context of political debate, as for the
plurality and the diversity of opinions or for the ability to openly discuss
political matters in public. Accordingly, interferences with the freedom of
expression of politicians call for a
heightened standard of scrutiny; and statements which are part of a public or political debate leave
hardly any room for restrictions on freedom of expression. However, despite this wide protection, not all
forms of discourse are protected. Even political debate is not immutable.

The Féret and Le Pen cases of the ECtHR are good examples of the rejection of political
hate speech from the scope of the ECHR. The applicants were the respective
Presidents of the Belgian and French far-right party the “Front National”,
known for their strong opposition to non-European immigration and anti-Islam
ideology. Both were convicted by national criminal courts for provoking
discrimination, hatred and violence. Following their convictions, the applicants
filed claims before the ECtHR alleging a violation of freedom of expression.

In these cases, the
Court considered that political speech that stirred hatred based on religious,
ethnic or cultural prejudices was a threat to social peace and political stability
in democratic States. In addition, the ECtHR highlighted at these occasions
that it was crucial for politicians, when expressing themselves in public, to
avoid comments that might foster intolerance. Put simply, political hate speech
is not protected by the Convention.

In concrete
terms, the Court excludes the protection of any speech that denies the
fundamental values of the Convention through Article 17 (prohibition of abuse
of rights). Where the speech at stake, whilst being hate speech, is not apt to
destroy the fundamental values of the Convention, the protection is restricted
under Article 10(2) (legitimate limitations of the right to freedom of
expression).

There is no doubt that political parties and
politicians have a major role within European democratic orders as well as
towards freedoms and liberties of citizens. On that basis, it appears
legitimate that politicians’ speeches, even if shocking, enjoy a broad
protection. However, hate speech irrefutably denies fundamental values that
are spread and anchored in Europe by infringing pluralism and multiculturalism.

“There is a growing European consensus on the need to combat and condemn political hate speech.”

In the context of increasingly diverse societies,
emphasis is placed on the importance of “living together”. In this regard,
there is a growing European consensus on the need to combat and condemn political
hate speech so that freedom of expression does not encourage violence against
others. Accordingly, it is necessary that measures are taken to tackle such phenomenon.
These efforts require political and social will but also commitment to
effecting change. Furthermore, standards of political hate speech should be
strictly framed and assessed with high scrutiny in order to respect all the
rights at stake.

Additionally, the fight against intolerance must be an
ongoing effort in the face of new challenges. With the increasing importance of
new technologies, it is necessary to continue discussions on the development of
online hate speech and freedom of expression.

Above all, what should be deeply affirmed, reaffirmed, established and instilled in European societies is that hate speech is not free speech.

Lauryane studied her undergraduate degree in Law with European Law at the University of Orléans in France with a year abroad in De Montfort University in the UK. She then undertook a Master in International Human Rights Law at the Catholic University of Lille in France, and worked several months for the Council of Europe. Freedom of Expression, Children Rights and the interdisciplinary study of Human Rights are her areas of interest.